I erred in admitting evidence in favour of Opuni, Agongo - Judge admits

Justice Clemence Honyenuga has confessed that he made mistake when he admitted into evidence several documents that ‘exonerate’ former COCOBOD boss, Dr Stephen Opuni and businessman Seidu Agongo.

The admission of the judge was contained in his 89-page ruling on the applications for ‘submission of no case’ by counsel for the accused persons he delivered on May 6, 2021.

“It is also trite that a court could admit documents into evidence and reject same during Judgment. In view of the decision in Ekow Russel v the Republic, a Supreme Court decision, this court was wrong in admitting Exhibits 71, 72 and 75 since they offend against the hearsay rule in section 117 NRCD 323,” Justice Honyenuga wrote in part.

Some of the documents in contention are that defence counsel accused the state of hiding from the court, but defence counsel managed to tender them through the trial investigator, Detective Chief Inspector Thomas Prempeh Mercer during cross-examination.

In all, 18 documents tendered in evidence by counsel for Dr Stephen Opuni and counsel for Seidu Agongo without any objection from the Prosecution and subsequently marked as Exhibits were later rejected by Justice Honyenuga in his closet who now says he was wrong in admitting those documents.

He maintained that a judge has the power to reject evidence whilst giving judgement.

“By the decision of the Supreme Court in Ekow Russel v the Republic (supra) I would reject exhibits 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, and 75 as they offend the hearsay rule in Section 117 of NRCD 323 as a court has the power to reject evidence during judgment stage,” the judge asserted.

He explained his decision: “The exhibits were all tendered through witnesses who were not the authors and could not answer questions based on them. Meanwhile, the witnesses are available.”

Interestingly, the judge did not reject documents authored by others which the Prosecution tendered through the investigator.

Exhibit 69 and Exhibit PP were statements taken from farmers by EOCO and tendered through the trial investigator. The judge rejected Exhibit 69 tendered by the defence counsel but accepted Exhibit PP tendered by the Prosecution during the re-examination of the investigator.

Exhibit PP is the statement of a farmer who doubles as a Board Member of COCOBOD.


A cursory look into The Rejected Exhibits

Exhibit 58

Exhibit 58 was tendered through Chief Insp. Thomas Prempeh by Samuel Cudjoe, Counsel for Dr Stephen Opuni on Monday, February 15, 2021, during cross-examination.

This is the statement of Dr Gilbert Anim Kwapong to the Police on the 17th of January, 2018. Dr Opuni was accused by the investigator of giving an oral directive to senior scientists at CRIG to shorten the testing of agrochemicals.

But Dr Kwapong who was Director for Cocoa Pest and Disease Control (CODAPEC) programme of COCOBOD told the police in his statement that he had never been coerced in the performance of his duty with respect to the testing of agrochemicals and spraying machines.

Q: And that he has also not coerced any Scientist with respect to the duties of testing agrochemicals and testing machines

A: Yes My Lord.

Exhibit 59

Exhibit 59 was tendered on Monday, February 22, 2021. It is the statement of one James Mbawini Akutek, a senior official at the Procurement Unit at COCOBOD, stating that the unit writes all procurement letters but are signed by the Chief Executive.

Dr Opuni has been accused of writing letters bothering on procurement to suppliers and PPA leading to COCOBOD parting with millions of cedis to Seidu Agongo’s Agricult Ghana Limited.

Q: On the sixth line from the beginning, he states that the procurement process is initiated by the Procurement Unit after an approved request from management to procure for a particular year is received.

A: Yes My Lord.

Q: And he continues that the procurement unit write letters to the companies issued with CRIG certificate to request them to submit this document. Isn’t it.

A: Yes My Lord.

Q: Then he states that upon receipt of the documents the procurement unit write letters to the procurement authority but signed by the Chief Executive. Isn’t it.

A: That is so My Lord.

Exhibit 60

Exhibit 60 is a statement of Bernice Ashun, the then Procurement Manager at COCOBOD to CID investigators which was admitted into evidence on Monday, February 22, 2021.

Q: On page 2 of her statement of Exhibit 60, she also states from line 11 from the top that the procurement unit prepares letters for each company to the PPA to sole source all chemicals. Isn’t it.

A: My Lord, that is so.

Q: Then on line tenth from the bottom, she also states that it is the procurement unit which prepares letters of notification of award for the signature of the CEO. Isn’t it.

A: My Lord, that is so that is what she has written here.

Q: And she also states that it is the procurement unit together with the legal department which prepares the contract document. Isn’t it.

A: My Lord, that is also so

Q: And she said that after these contract documents are prepared, the contract is signed by the Chief Executive

A: My Lord. that is so.

Exhibit 61

Exhibit 61 is one of the statements of Bernice to the police on procurement procedure at COCOBOD. It was tendered in evidence on Monday, February 22, 2021. Like Exhibit 60, Bernice never wrote that the Unit didn’t write the February 25, 2014 letter signed by Dr Opuni requesting for quotation from Agricult.

Q: Chief Inspector Prempeh, on the 8th line from the bottom Bernice state that when it relates to the procurement of fertilizers, that is various agrochemicals, the list comes from Hi-Tech and CODAPEC.

A: Yes My Lord.

Q: Then from the third line from the bottom, she states that this approved list states the type of agrochemical to be procured, the quantities and the companies from which they will be procured.

A: Yes My Lord, that is so.

Q: Then from the 5th line from the bottom it also states that the procurement unit write letters to each company requesting the submission of a valid CRIG certificate, EPA Certificate, GRA Certificate and SSNIT certificate where applicable. Isn’t it.

A: My Lord that is so. That is what she has written here

Counsel made further reference to the same Exhibit

Q: Then she also states that if the draft contract is approved by the legal department then the Chief Executive would sign on behalf of Cocobod and witnessed by the Director of Finance. Isn’t it.

A: My Lord, that is also so

It is worth noting that the investigator agreed to the fact that statements by Akutek and Bernice to the CID did not state that the 25th February letter did not follow the normal procedure.

Exhibit 62

Exhibit 62 which was admitted into evidence on Monday, February 22, 2021, showed that “Identical Letters” were signed by Dr Opuni on February 25, 2014, to different suppliers and not only Agricult as being portrayed by Prosecution.

Q: Chief Inspect Prempeh, you will see that on the same 25th day of February 2014 another identical letter this time with respect to fungicide and insecticide was also written by the procurement unit and signed by 1st Accused as Chief Executive. Isn’t it

A: My Lord it is exactly so. But My Lord, just to draw the attention of the court that we did not investigate the procurement of any case with regard to fungicide and pesticides.

Exhibit 63

A statement by the then board chairman of COCOBOD, Daniel Ohene Agyekum to the police CID absolving Dr Opuni from any wrongdoing, was admitted into evidence on Monday, March 1, 2021, and marked as Exhibit 63.

Q: The then Board Chairman states from line 1 to 7 that all purchases and contracts were duly approved by the board, Isn’t it.

A: Yes My Lord

Q: Then from line 12 from the bottom of this statement he also states that all the necessary rules and procedures for procurement of said particular chemical and fertilizers were strictly adhered to, Isn’t it?

A: Yes My Lord

Q: He also states that the entity tender committee of Cocobod also gave its approval.

A: Yes My Lord

Exhibits 64, 65 and 66

Exhibits 64, 65 and 66 were minutes of the Entity Tender Committee tendered in evidence on Monday, March 1, 2021, and were not objected to by the Prosecution.

Q: And indeed 1st Accused (Opuni) did not attend any of the meetings of the entity tender committee meeting, isn’t it?

A: Yes my Lord.

The witness was further asked:

Q: In fact when the then board chairman Mr Daniel Ohene Agyekum stated in his statement that all contracts for fertilizers were approved by the board, he only meant that the board was aware of all these contracts including Lithovit

A: My Lord that is not so. My Lord, I have explained to this court that the Board Chairman then, the Board members excluding A1, the members of the entity tender committee did not know that the Lithovit liquid fertilizer that they were approving to be bought by COCOBOD was not tested at all. It was only A1 who had knowledge about that

Interestingly, while being cross-examined, the trial investigator admitted that the CID never spoke to any Board Member of COCOBOD except the then Chairman. He said the CID did not also speak to any member of the entity tender committee.

Exhibit 67

Exhibit 67 which was admitted on Monday, March 1, 2021, is a statement from the head of the Soil Science Division at CRIG, Dr Francis Baah.

Dr Baah told investigators in his statement that based on a survey conduct by the Cocoa Health and Extension Division (CHED) “farmers preferred Lithovit to that of the granular fertilizers”.

Exhibit 68

Exhibit 68 is another statement from Dr Francis Baah to investigators tendered in evidence on March 11, 2021.

Q: Chief Insp. in this statement Dr Baah was explicit that he was not instructed by anyone to request any quantities of Lithovit fertilizer Isn’t it.

A: Yes My Lord

Q: The question is, in his statement, he said it is the Finance Department which procures inputs for CODAPEC and HI-TECH, isn’t it

A: My Lord that is so

Exhibit 69

On Thursday, March 11, 2021, Dr Opuni’s counsel tendered in evidence a statement by Mr Emmanuel Obeng given at EOCO which is one of the documents the CID took over from EOCO. It was marked Exhibit 69.

Q: In this statement, the farmer who is known to the investigation, on the last three lines from the bottom stated that from his experience lithovit is good for the young and old trees, isn’t it

A: Yes My Lord, that is so

Exhibit 70

Exhibit 70 is the statement Dr Mrs Asamoah, former head of SSSU, an agency under COCOBOD which was tendered in evidence on Thursday, March 11, 2021. She told investigators in that statement that she did not know anything about lithovit and would not speak to it.

Her statement was used by the defence counsel to counter claims by the trial investigator that the SSSU was responsible for farmers concern and use of fertilizers.

Exhibit 71

The head of the Material Science Department of GSA, Mrs Baah Mantey wrote in her statement to investigators, which is marked Exhibit 71, revealing that GSA carried out a second scientific test on Lithovit Fertilizer. Her statement tendered by Nutifafa Nutsukpui stand-in counsel for Seidu Agongo, admitted into evidence on Monday, March 15, 2021, pointed out that, “the results revealed that that sample contained some amounts of nitrogen phosphorus and potassium and so the sample was identified as fertilizer”.

Meanwhile, the scientific test result from the Chemistry Department of the University of Ghana, one of the Exhibits the judge based his ruling on, was discredited by the 5th prosecution witness under cross-examination in October last year.

Dr Emmanuel Yaw Osei-Twum who claimed to have worked on that sample impugned the credibility of the report when he noted in court that the report which was tendered in evidence by the prosecution was doctored.

Exhibit 72

Exhibit 72 is a statement of one Fiona Gyamfi a senior official at Ghana Standards Authority.

Q: Sir, on the 5th line from the top of the first page of Exhibit 72, she confirms that on 30th June 2017, two samples, one granular substance and liquid substance (Lithovit) were submitted to the GSA Lab from EOCO, is that correct

A: Yes, My Lord.

The trial investigator was also asked:

Q: When you reviewed the files and came across Mr Gyang’s statement and those of Mrs Baah Mantey, Miss Fiona Gyamfi and Janet Bridget Aidoo (Exhibit 73) pointing to the existence of a 2nd test report from GSA which you did not find on the case docket, did you report this to your chain of command

A: My Lord, in my evidence in chief I stated that the case was investigated by FFU and mentioned the team members which included the Unit Commander herself and so there was no need to report to anybody because the Unit Commander herself was part and we have the investigator of the case giving statement.

Q: Now Sir, did the Unit Commander consider that it was appropriate for you to proceed regardless of the fact that though there is evidence on the docket of a scientific report, the report itself was nowhere to be found on the docket you had just taken over.

A: My Lord, that is also not so because the docket that we took over contained two scientific reports. My Lord, the investigation of Lithovit Foliar Fertilizer was that the Lithovit powder which A2 on behalf of A3 presented to CRIG through Cocobod for testing was not what he ended up supplying to Cocobod.

Exhibit 73

Exhibit 73 was a statement from GSA officials tendered in evidence on Monday, March 15, 2021

Exhibit 74

Exhibit 74 was obtained from a top scientist at CRIG, Jerome Agbeshie Dogbatse and was also admitted into evidence on Monday, March 15, 2021

Exhibit 75

Exhibit 75, was the statement Mr Paul Agyei Gyang, head of Organized Crime Unit of EOCO, gave the CID as a handing over note.

Q: Now Sir, when you reviewed Mr Gyang’s statement which is Exhibit 75, you realized that he spoke about a 2nd test report from the GSA.

A: Yes, My Lord.

Q: Sir, did you enquire about the 2nd test report as part of your investigations

A: Yes, My Lord. My Lord, the answer we got was the two test reports that were on the docket.

The counsel pushed further

Q: Sir you see, I am putting it to you that the only reason that that 2nd test report of July 2017 from GSA is not part of the documentation before this court is that it defeats the narrative that you have built for this case.

A: My Lord that is never so at all.

A total of 27 charges were levelled against former COCOBOD Chief Executive Dr Stephen Opuni and businessman Mr Seidu Agongo including willfully causing financial loss to the state and contravention of the Public Procurement Act.

They have both pleaded not guilty to the charges and are on a GHS300,000 self-recognisance bail each.

The case has been touted as a political trial with Ghana’s President, Nana Akufo-Addo, and current Attorney General Godfred Yeboah-Dame citing it as one of the corruption cases involving the erstwhile Mahama administration.

Though the Accused filed for submission of no case against them it was rejected by Justice Honyenuga in his May 6 ruling.

“I am convinced that this matter being sensitive and in the interest of justice and with the prosecution having established the ingredients of the offences charged and made a prima facie case against the accused persons, they must be called upon to open their defence. In the circumstances I call upon the accused persons to open their defence,” the judge ruled.

The accused persons are expected to open their defence on May 17, 2021.